Documente Academic
Documente Profesional
Documente Cultură
2001)
In June 1998, Timothy Hopkins was injured at sea while serving aboard the
F/V Jamie & Ashley. The accident occurred while the ship was letting out a
fishing net from a reel mounted at the aft end of the vessel. The reel was
controlled by another crew member, Ben Farrington, who operated hydraulic
controls on the port side. Hopkins was standing on the starboard side of the reel
as the net unwound into the sea.
During the unwinding, a portion of the net slipped off the port side of the reel,
falling over the edge of the flange extending upward on either side of the reel.
Farrington stopped the mechanism and climbed up the side of the reel to stow
the loose portion. Hopkins approached the reel from the other side to assist as
While bent over, Hopkins was struck in the back by a can that was one of many
attached to the net as a buoy to keep it from sinking when in the water. Hopkins
alleged that this occurred because Farrington started up the reel mechanism
without first making sure that Hopkins was clear of the area and, more broadly,
that the accident occurred because the reel flanges were not high enough to
contain a net of this size. Farrington denied starting the reel while Hopkins was
in the way.
Having suffered a herniated disk in the accident, Hopkins sued the ship owner,
Jordan Marine, Inc., charging that the ship was unseaworthy because the net
bulged over the edge of the flanges and for other reasons and that under the
Jones Act, 46 U.S.C. 688 (1994), the ship owner was liable for Farrington's
alleged negligence and for negligence of the captain in several different
respects. Jordan Marine's position was that the flanges were adequate, that the
can had fallen because a portion of the net had parted from hard use (as nets
sometimes do) and that Hopkins was himself negligent in straying--without
warning Farrington--into a "blind spot" in which the reel blocked the control
operator's view.
The jury returned a verdict against Hopkins, finding separately that Jordan
Marine had not been proved negligent and the vessel had not been proved
unseaworthy. The district court denied Hopkins' motion for a new trial and he
appeals. In this court he contends that the district court erred in two respects in
instructing the jury. He also says that Jordan Marine's expert was not qualified
to testify.
Assumption of the risk is a doctrine associated with common law tort liability.
Like many such phrases, it has been used in more than one way, Prosser and
Keeton on Torts, 68 at 480-98 (5th ed. 1984); Tiller v. Atlantic Coast Line R.
Co., 318 U.S. 54, 68-69 (1943)(Frankfurter, J., concurring); but in one version,
the doctrine was understood to block an employee from recovering for
negligent behavior or conditions for which the employer was responsible if the
risk was apparent to the employee and the employee continued voluntarily in
his employment, thereby "assuming the risk."
8
Through stages that need not be described, see Gilmore & Black, The Law of
Admiralty 351-57 (2d. ed. 1975), assumption of the risk has now been
eliminated as a defense to unseaworthiness claims and to claims for negligence
under the Jones Act. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 429
(1939); The Arizona v. Anelich, 298 U.S. 110, 122 (1936). But contributory
negligence remains as a defense to both sets of claims; the jury is told that if the
plaintiff's own negligence played a part in causing the injury, then any liability
of the defendant is to be reduced by the percentage or proportion by which the
plaintiff contributed to his own injuries. Wilson v. Maritime Overseas Corp.,
150 F.3d 1, 11 (1st Cir. 1998); 5 Sand, et al., Modern Federal Jury Instructions,
Inst. 90-29 at 90-52 (2001).2
10
The sentence does not say that assumption of an obvious risk is a defense to
unseaworthiness or negligence on the part of the shipowner. Rather, it says that
a ship is not unseaworthy or an owner negligent merely because the ship owner
does not anticipate that a crew member will behave negligently. Possibly the
statement goes a shade too far (perhaps in some repeat situations carelessness
should be anticipated); but it is certainly not an instruction that--on account of
the seaman's carelessness--the owner or ship can escape liability for its own
negligent act or unseaworthy condition.
11
Indeed, in the next two paragraphs, the district court went out of its way to
refute the inference drawn by Hopkins. The court said that while the plaintiff
must act reasonably to avoid apparent dangers, a "seaman does not assume the
risk created by the failure of the ship to take [reasonable] precautions" and "that
a seaman does not assume the risk of injury or illness from even obvious
dangers or conditions if the cause of the injury is the ship's negligence, the
failure to provide him with a safe place to work, or the failure to provide a safe
and seaworthy vessel."
12
13
Hopkins' other claims of error can be dealt with more swiftly. He objects
because at two other points in the instructions, the district court twice referred
to the need to show that defendant's negligence was "the" proximate cause of
Hopkin's injury. True, it would be enough to show that such negligence was "a"
proximate cause; the wrongful act or condition need not be sole and exclusive
cause. Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506 (1957). But the district
court gave an emphatic instruction to this effect at the outset (emphasis added):
14
15
16
17
Finally, Hopkins says that Jordan Marine's expert was not qualified. The expert
was a graduate of the Coast Guard Academy who had served as an inspector of
ships for the Coast Guard followed by years of consulting work in ship
inspection and investigating maritime accidents. In no way did the district court
abuse its discretion in permitting this expert to testify. See Diefenbach v.
Sheridan Transp., 229 F.3d 27, 30-31 (1st Cir. 2000).
18
Affirmed.
Notes:
*
Hopkins' counsel did object to the instructions after they were given on the
ground that the Supreme Court had barred assumption of the risk as a defense,
although counsel seemingly pointed to two other references in the charge. The
original charging conference was not transcribed, but the judge's response to
the post-charge objection indicates that the same objection had been made and
rejected at the charge conference.